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SECTIONAL PROPERTY

The main aim of Sectional Properties Act 1987 is to facilitate the subdivision of land and buildings comprising a development scheme into three-dimensional units (section). Each individual property consists of a unit and an undivided share in the common property. The law creates an entirely new form of composite ownership namely proprietor (title) of a unit coupled with joint ownership (tenancy) in the common property. The Act also create an entirely new kind of association, namely the body corporate (management corporation) consisting of all the registered owners as members.

Under this Act, a threefold legal relationship is created once a unit is registered in the name of an owner. Such a person becomes owner of his Unit, joint owner (tenant) of the common property in undivided shares, and a member of the management structure namely the body corporate (Management Corporation). The uniqueness of sectional property can be observed through its main features. The most unique feature of sectional property as a legal entity is its “three-dimensional” ownership concept. A sectional property scheme involves the division of a real property parcel into “unit” and “common property”.

Some of salient features that exist in the sectional title are as follows:
1)The owner has exclusive ownership with regard to his or her individual apartment and joint ownership with regard to the common property and is entitled to manage and maintain the common property.
2)The three components of the Act are linked to each other to form a “threefold unity”. None of these components can be disposed of separately.
3)The undivided interest in the common property is unique to a particular unit. The interest cannot be separated from or alienated independently of the unit.
4)Unit owners’ rights and duties are many. Apart from the exclusive interest in his/her unit, owners also have the right to take part in the operation and management of the whole sectional property, attending the meetings of the owners’ association, and the duties of abiding by the by-laws of the association and paying service charges to keep the common property in good order and ensure the association is running well.
5)Unit ownership encompasses both the law of property and the law of associations. A unit owner has interest in both the unit property and in the common property, which automatically enables him/her to join a owners corporation to deal with the administration of maintenance and management of the common areas of the sectional property.
6)Part 11 of the Sectional Properties Act of 1987 section 6 subsections 3, gives primacy to exclusive ownership of individual property over the other two components. Individual ownership of a unit is the most important element of the tripartite ownership. In light of the threefold unity theory, individual ownership is central in determining rights and obligations of owners, hence it can be thought of as the nucleus of the three components.

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The concept ‘sectional title’ describes the separate ownership of units or sections within a complex or development. Purchasing a property into a sectional title complex, you purchase a section or sections together with an undivided share of the common property, which are known as units. A sectional title unit may refer to anything from a mini subtype house, a semi-detached house, a townhouse, a flat or apartment.
Ownership of sectional title property involves a number of elements, bearing in mind that the unit consists of a section plus an undivided share in the common property. The first element is the section, which is exclusively owned by the owner thereof. The second element is the common property, which is owned by all the owners in undivided shares, meaning that you become a joint owner of the common property of the sectional title scheme. The third possible element is the right to exclusively use certain parts of the common property for example a garden parking or a storeroom. Even though the owner does not own the exclusive use area, he is the only person that has the right of use it.
The Sectional Title Act of South Africa adopts the exclusive technique of defining the common property as comprising of: (1) the land included in the scheme ; (2) all parts of the building or buildings not included in a section; and (3) any other added land where the scheme has been extended. The statutory definition of common property under the Sectional Property Act of Kenya, 1987 Part 1 section 3 defines common property as meaning so much of a parcel as is not comprised in a unit shown in a sectional plan. The common property can comprise of facilities such as play areas for children, gyms, parking, swimming pools, stairways, roofs, e.t.c